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ADMISSION OF KANSAS. 

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SPEECH 



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OF 






HON. HENRY M. PHILLIPS, 

OF PENNSYLVANIA, 

IN THE HOUSE OF REPRESENTATIVES, MARCH 9, 1858, 
On the admission of Kansas as a State tinder the Lecompton Constitution. 



The House being in the Committee of the Whole on the 
■state of the Union — 

Mr. PHILLIPS said: 

Mr. Chairman: It was my intention, as it yet 
would be my preference, to have forborne the 
expression of my views on this subject until the 
question of the admission of Kansas into the 
Union as a State was regularly brought to the 
notice of this House. Rut, limited as has been 
my experience in this House, it lias sufficed to 
show me that opportunities of obtaining the floor 
are neither frequent nor certain, and that, if I re- 
linquish it now, I may not again have the oppor- 
tunity of proclaiming the sentiments which I en- 
tertain, the knowledge of which there are many 
who arc entitled to have. 

I look upon this question as one in which the 
peace of the Union is involved. I do not speak of 
its permanence, nor do I suppose that there is any 
real danger of its early dissolution. But when its 
peace is disturbed ; when, from one extreme to the 
other, there is strife, there is contention, there is 
violence and tumult, where there should be quiet; 
it becomes, Mr. Chairman, an unwilling Union, 
the value of which all begin to calculate, and what 
may follow some day is much more easy to be 
anticipated than pleasant to be considered. 

This subject of territorial legislation has been 
at all times prolific of discord. It was at the time 
of the attempt, and the successful attempt, at the 
introduction of Louisiana into the Union as a 
State, that an eminent gentleman from Massachu- 
setts uttered in the Hail of the House of Repre- 
sentatives what I have no doubt those who hear 
me have read with deep regret that it was ever 
uttered there: 

'" If this hill passes, it is my deliberate opinion that it is 
virtually a dissolution of this Union; that it will free the 
States front their moral obligation, and as ii will he the right 
of all, so ii u'ill be the duty «f some, definitely to prepare 
for a separation ; amicably, if they can ; violently, if they 
must." 

There are some here, too, Mr. Chairman, who 
can well recollect the excitement and the painful 
anxiety occasioned, in 1819 and 1820, by the ad- 
mission of Missouri into the Union. And now, 
when a similar boon is asked for her neighbor that 
was then extended to Missouri herself, no man of 
truth will deny that there exists, throughout the 
length and breadth of this land, a feeling of solici- 



tude and excitement; and that there is amongst the 
extremists an almost sacrilegious joy at the recur- 
rence of events calculated to jar and disturb the 
harmony of the Union, which a bold attack can 
never produce. 

Since her organization as a Territory, Kansas 
has known no peace. Since the passage of the 
Kansas-Nebraska act, Kansas has been the theater 
of strife and tumult. With everything to make 
her people happy and comfortable, with a richness 
of soil and purity of climate almost unequaled, 
it has been the scene of discord, of riot, of vio- 
lence, and of bloodshed, and it is time now that 
these things should be stopped; Kansas calls upon 
us to stop them; the people of every State in the 
Union expect as much from us; and, Mr. Chair- 
man, we must consider what is the effectual way 
of stopping them, and when we find that, we must 
apply the effective means, if we can do so, con- 
stitutionally, and in obedience to the recognized 
law of the land. Shall peace be restored by the 
Federal authorities, by the bayonets of the Uni- 
ted States troops, by the more constant vigilance 
and attention of the soldiers or Federal officers, 
or shall it be restored by the people of Kansas 
herself? Shall she not be thrown at once upon 
her own resources, and shall not her citizens be 
told: " You shall be the conservators of your own 
peace, and if you are a law-abiding people — if 
you haveapopu!ation,suchasit has been boasted 
here over and over again that you have, we appeal 
to you to obey the law, to support the law, and 
to restore peace to your people in the State of 
Kansas?" Believing, as I do, tli^t peace can be 
reestablished there permanently only by her admis- 
sion as a State into this Union, and that the prog- 
ress and prosperity of Kansas must begin to date 
from that act, I sincerely hope she will be admit- 
ted so soon as it is ascertained that she is in a 
condition entitling her to that privilege, and jus- 
tifying us in according it. 

I shall proceed, Mr. Chairman, to show that the 
admission of Kansas into this Union under he;* 
present application, and with the Lecompton con- 
stitution, is regular, is according to established 
principle, according to recognized precedent, and 
according to what some gentlemen on this floor 
dare not deny is good authority. If this be so, 
and she has a republican constitution, I say we 



have no right, regarding the peace and interests of 
our citizens, to hesitate for one moment to admit 
her. I shall do little more, in the limited time 
allowed me, than assert the principles that I main- 
tain, using but little argument, but referring, per- 
haps, to a good deal of authority that ought to be 
recognized here, in support of them. 

Was this territorial convention regular, is ob- 
viously the first question? Who disputes it? 
Does it require an enabling act? If it does, it 
has it. No man can read the Kansas-Nebraska 
act without seeing that there is an enabling act 
there. Eut does it require an enabling act? I 
tell the gentlemen upon this floor, who oppose 
the admission of Kansas under the Lecompton 
constitution, that I will appeal to those who have 
on former occasions spoken for them, and by 
whom I will judge whether it was regular or not. 
I will show the gentlemen who compose the ma- 
jority of the Opposition that their views have 
been expressed in such a manner that they can- 
not now contradict them ; while to those who com- 
pose its minority, I will cite the highest author- 
ities recognized by any one of them. 

Mr. Chairman, why must an enabling act be 
passed ? Have the people the right to form a con- 
stitution or not? And if they have not the right, 
has Congress the right to bestow it upon them ? 
I shall quote, upon this subject, my colleague from 
the fourteenth district, [Mr. Grow;] and I cite 
him because, as the Republican candidate for 
Speaker, receiving more than eighty votes at the 
commencement of this session, he may be fairly 
considered the representative of the views and prin- 
ciples of that party, as he was formerly the expo- 
nent of them. I cite him as good authority — as au- 
thority from which those who indorsed him at the 
commencement of the session cannot now dissent. 
What said he when the application was made to 
admit Kansas into the Union with a constitution 
framed without an enabling act — framed, permit 
me to say, by men in rebellion to the laws and 
with arms in their hands, to be used against the 
Federal authorities? When Kansas came here, 
with the constitution thus made at Topeka, he 
eloquently pleaded for her admission as a State, 
as a measure of peace; and in support of the reg- 
ularity of her action, he said: 

" The mode and manner of accomplishing it in organized 
States properly belongs to the form-; of law, to be prescribed 
by the State government; but in the Territories, Congress 
is the only power that can prescribe the forms; for a terri- 
torial government emanating from Congress can be changed, 
modified, or abrogated, only by its consent. That consent, 
however, can be expressed as well after as before the action 
of the people. If Congress, then, has prescribed no form, 
whatever action the people think proper to adopt, in order 
to secure a change of government, provided it be conducted 
iu a peaceable manner, is lawful and constitutional ; lawful, 
because it violates no valid law — constitutional, because 
article first of the amendments to the Constitution secures 
to the people everywhere under its jurisdiction the right, 
paramount to all law, jieaceably to assemble, and to petition 
the Government for a redress of grievances." 

I want no better authority than my friend and 
colleague; and those who voted for him for Speaker 
of this House voted for him because they saw in 
him a proper representative of popular sover- 
eignty, according to the doctrine he had expressed 
and they then maintained. Eut I have other au- 
thority; and I shall do little else than cite author- 
ities, to which I wish the attention of those Dem- 
ocrats who, like the gentleman who has just 
spoken, [Mr. English,] have departed from us 



on this question. I have for those who, I am 
afraid, will not have the same confidence in my 
colleague that I have avowed, high authorities. 
I have the authority of Govern or Robert J. Walker 
and of Mr. Secretary Stanton. They have said, 
in words and language not to be misunderstood, 
that the Lecompton convention was lawful. They 
have said that the act of the Territorial Legisla- 
ture authorizing the convention was right; and 
they have warned the people over and over again, 
that, if they did not vote for delegates when they 
had the opportunity afforded them, on their own 
heads must be the consequences. 

Mr. Stanton, on arriving in the Territory, ad- 
dressed the people, saying, among other things; 

"The Government especially recognizes the territorial 
act which provides for assembling a convention to form a 
constitution with a view to making application to Congress 
for admission as a State into the Union. That act is re- 
garded as presenting the only test of the qualification of 
voters for delegates to the convention, and all preceding 
repugnant restrictions are thereby repealed. In this light 
the act must be allowed to have provided for a full and fair 
expression of the will of the people through the delegates 
who may be chosen to represent them in the constitutional 
convention." 

Again, in the message of the acting Governor 
in December last, and after what is now called the 
mischief had been done, he says: 

" It thus appears that in the election of the 15th June last, 
for delegates to the convention, the great mass of the people 
purposely refrained from voting, and left the whole pro- 
ceeding, with all its important consequences, to the active 
minority, under whose auspices the law had been enacted, 
and also executed, so far as that could be done by the ex- 
ecutive officers, without the concurrence of the majority 
of the people. 

" That the refusal of the majority to go into the election 
for delegates was unfortunate, is now too apparent to be de- 
nied. It has produced all the evils and dangers of the present 
critical hour. It has enabled a body of men, not actually 
representing the opinions of the people, though regularly 
and legitimately clothed with their authority, to prepare for 
them a form of government, a/id to withhold the greater 
part of its most important provisions from the test of pop- 
ular judgment and sanction." 

Governor Walker says very much the same: 
"The people of Kansas, then, are invited by the highest 
authority known to the Constitution to participate freely 
and fairly in the election of delegates to frame a constitution 
and State government. The law has performed its entire 
appropriate function when it extends to the people the right 
of suffrage ; but it cannot compel the performance of that 
duty. Throughout our whole Union, however, and vvhere- 
ever free government prevails, those who abstain from the 
exercise of the right of suffrage authorize those who do vote 
to act for them in that contingency ; and the absentees are 
as much bound under the law and constitution, where there 
is no fraud or violence, by the act of the majority of those 
who do vote, as if all had participated in the election. Other- 
wise, as voting' must be voluntary, self-government would 
be impracticable, and monarchy or despotism wouid remain 
as the only alternative." 

In many places he uses similar language. He 



''• If laws have been enacted by the Territorial Legislature 
which are disapproved of by a majority of the people of tut; 
Territory, the mode in which they could elect a new Ter- 
ritorial Legislature and repeal those laws, was also desig- 
nated. If there are any grievances of which you have any 
just right to complain, the lawful, peaceful manner in which 
you could remove" them, in subordination to the Govern- 
ment of your country, was also pointed out." 
Again: 
" In the case of Michigan, the Territorial Legislature were 
clothed by Congress with no authority to assemble a con- 
stitutional convention and adopt a State constitution ; but 
that, under the comprehensive language of the Kansas and 
Nebraska bill, the Territorial Legislature was clothifd with 
such authority by the laws of Congres?, and that the au- 
thority of such a convention to submit the constitution to 
the vote of the people, was as clear and certain as that of 



Congress itself, and that opposition to such a proceeding 
was equivalent to opposing the laws of Congress." 

Thus cursorily, Mr. Chairman, because it is 
not very important, I have referred to the author- 
ity of the leading men in the Opposition, to show 
that the territorial convention was properly cre- 
ated, and was a regular and lawful body. Now, 
what was it to do? It did not submit its pro- 
ceedings to the people. It would have been bet- 
ter, perhaps, that it had. It is right on all such 
occasions to do so. But is there any law re- 
quiring it? And if there is no law requiring it, 
what guarantee have we that future legislation in 
that Territory will be better than the past? Shall 
we be told that there is any obligation of law re- 
quiving the constitution to be submitted to the 
people ? If so, I will again refer to the authority 
of Governor Walker, to show that he distinctly 
told them, in advance of the election, that there 
was no such obligation. 

Governor Walker says: 

" Vou should not console yourselves, my fellow-citizens, 
with the reflection that you may, by a subsequent vote, 
defeat the ratification of the constitution. Although most 
anxious to secure to you the exercise of thatgreat constitu- 
tional right, and believing that the convention is the servant, 
and not the master of the people, yet I have no power to 
dictate the proceedings of that body." * * * * 

" The only remedy rests with the convention itself, by sub- 
mitting, if they deem best, the constitution for ratification or 
rejection, to the vote of the people, under such just and rea- 
sonable qualifications as they may prescribe." 

We find, then, that there was no recognized law 
requiring a submission of the constitution to the 
vote of the people; and the question now is, Mr. 
Chairman, what was done, and how far did that 
meet the public expectation? Mr. Walker, as I 
have said, told them in advance that there was no 
power to compel the convention to submit their 
work to the vote of the people. And yet, with 
all that before them, those who are now called the 
majority in that Territory, absented themselves 
from the polls and refused to participate in the 

rroceedings. What was the convention to do? 
agree that it did not submit the constitution to 
the vote of the people. They were authorized to 
form a constitution, and they had the right to do 
so. The gentleman who has preceded me, [Mr. 
English,] has said that some of the delegates to 
the convention broke their party pledges; that 
they pledged themselves to a certain course of con- 
duct and did not fulfill their promises. Agreed 
for the purpose of argument, but does that vio- 
late the law ? Does that prevent the organic law 
going into effect in the manner prescribed in the 
instrument? He will hardly assert that the dis- 
honesty or treachery of a member of a legislative 
body can affect its decrees, so that if the fact even 
be as he states it, it cannot operate upon the va- 
lidity of a law. If it would, where would safety 
be found? The same thing might occur again, 
and another election present a new set of men vio- 
lating party and other promises. But what did 
they do ? They submitted to the people, not the 
constitution, but the question whether they should 
have slavery among them; and I believe that if 
the people hud voted, under the circumstances to 
which I shall by and by allude, the constitution 
would not now contain that clause which to many 
on the floor of the House is so obnoxious. 

Now I propose to show, by the same author- 
ities, that the slavery question was the only ques- 
tion that was dividing the people of Kansas. I cite 



again my colleague, [Mr. Grow,] to show that 
the slavery question was then, as it always has 
been, the only subject of division in that Terri- 
ritory. He said " the existence of slavery was 
the only question on which the people were di- 
vided; and the vote for delegates to the conven- 
tion settled that by a majority of legal votes. " 

Mr. GROW. Will my colleague give the date, 
if he pleases ? 

Mr. PHILLIPS. The 30th of June, 1856, when 
the Topeka constitution was submitted; which 
constitution, by the way, received, I believe, only 
some seventeen hundred votes. 

Mr. GROW. Twenty-three hundred. 

Mr. PHILLIPS. I am reminded that my col- 
league was then chairman of the Commitiee on 
Territories; and that gives additional weight and 
emphasis to his statement. He spoke by author- 
ity. He stated this opinion on that occasion, and 
I do not believe he will deny it now. He has 
changed once, but I do not believe he will change 
in reference to this subject. 

Mr. GROW. Whether I have changed or not 
is a question of fact. 

Mr. PHILLIPS. I will raise no question of 
fact between my colleague and myself. My col- 
league, on that occasion, further said, in reply to 
the inquiry of an honorable gentleman from 
Georgia, [Mr. Trippe:] 

" I gave to the gentleman from New York the vote polled 
at the election immediately preceding the formation of the 
constitution. He knows, as well as any man, that the only 
question in Kansas on which the people arc divided is, 
whether slavery shall exist there or not? That question 
was involved in the election of Delegate. He knows, too, 
that that is the only question to be settled." 

It has not changed since then. If any other 
question has been raised since that time, I chal- 
lenge any gentleman upon this floor to tell me 
what it is. If there is any other question on 
which the people of Kansas are divided, I ask any 
gentleman on this floor to rise in his place and tell 
me what it is. As it stood then, so it stands now. 

Mr. GROW. If my colleague desires an an- 
swer, I will give it to him; though I do not like 
to interrupt him. 

Mr. PHILLIPS. I yield the floor to my col- 
league for that purpose. 

Mr. GROW. The gentleman inquires if there 
is any other question than that of slavery, of dif- 
ference between the people of Kansas ? That was 
at the first the great question of division between 
them, as he has stated; but, sir, since the inva- 
sion on the 30th of March, another question has 
arisen. They believed that at that time a gov- 
ernment was forced upon then, which was illegal, 
by force; and since that time this question has, 
to a great extent, taken the place of the slavery 
question. 

Mr. PHILLIPS. The 30th of March of what 
year ? 

Mr. GROW. It was in 1855. It was then that 
this invasion occurred, which forced upontheTer- 
ritory of Kansas a government which the people 
held that they were under no moral obligation to 
respect. This question has developed itself more 
and more, as the question of slavery has subsided. 
I believe gentlemen will agree with me on all sides 
that, after a certain time, it was generally con- 
ceded that Kansas could not be made permanently 
a slave State. 

Mr. PHILLIPS. Well, sir, my colleague's 



speech was made fifteen months after the invasion; 
and the question of slavery he then said was the 
only question in issue. [Laughter.] He is good 
authority in this particular, and I like to quote 
him. But, sir, I have other authority, for I see 
that he is not satisfied with himself as authority 
on this question. I will back my colleague up 
with so much that he will not be ashamed of the 
position he then took. Governor Walker said: 

" The President asked me to undertake the settlement of 
that momentuous question [that means slavery] which has 
introduced discord and civil war throughout your borders, 
and threatens to involve you and our country in the same 
common ruin." 

He tells them: 

" I cannot too earnestly impress upon you the necessity 
of removing the slavery agitation from the Halls of Congress 
and presidential conflicts." 

And again: 

" That in no contingency will Congress admit Kansas as 
a slave or I'ree State, unless a majority of the people of Kan 
sas shall first have fairly and freely decided this question 
for themselves." 

Mr. MONTGOMERY. I would like to ask 
my colleague whether the question of slavery was 
ever submitted ? 

Mr. PHILLIPS. If the gentleman wants to 
know, I can tell him that it was submitted, and 
surely he will not deny it. 

Mr. MONTGOMERY. I do deny it most em- 
phatically. The question of the importation of 
slaves from other States was submitted, and was 
the only one submitted . The question of the ex- 
istence of slavery there was never submitted. 
Slavery now exists in Kansas, and by that con- 
stitution is fastened upon the people of Kansas 
now and forever. 

Mr. PHILLIPS. I am glad my colleague has 
defined his position on that subject. "We will 
know where to find him hereafter. 

Mr. MONTGOMERY. There is no trouble in 
finding me at any time. 

Mr. PHILLIPS. I will show my colleague 
that the question of slavery was submitted to the 
people of Kansas. The constitution had been 
made, and the slavery question was the only one 
submitted. They were told that it would be sub- 
mitted; but they were told, they were warned, that 
if they did not vote, they delegated their rights to 
those who did vote. They were told by Gov- 
ernor Walker, they were told by Secretary Stan- 
ton, that such would be the effect of absenting 
themselves and withholding their votes. They 
were never told that the constitution itself would 
be submitted to the people; for the Legislature had 
not undertaken to direct the convention to do it, 
but left it to the convention itself. 

Why, sir, some years ago, in Pennsylvania, 
when it was undertaken to change the constitu- 
tion of that State, when the law was passed by 
the Legislature for calling a convention, one of 
the most distinguished lawyers living, one of 
those who gave the fame and name of "a Philadel- 
phia lawyer," which I am afraid those who came 
after do not so well deserve, objected to the law on 
the ground — and I trust I may be considered as 
reading it now, (Appendix A,) — because it under- 
took to tell the convention in what/ora the consti- 
tution should be submitted and adopted . The law 
provided that, after the convention had finished 
their labors, they should adjourn for four months, 
not to submit the question to the people, but so. 



that the members could learn the will of their 
constituents, by familiar intercourse between the 
representatives and constituents, and then act in 
accordance. William Lewis put upon record his 
dissent to this feature of the law, on the ground 
that the Legislature, an inferior body, had no right 
to undertake to control the convention, a supe- 
rior body, composed of delegates just fresh from 
the people — a direct emanation of the people. 
Will my colleague tell me why an inferior body 
should prescribe rules for the government of a su- 
perior body ? Will he, with all his ideas of pop- 
ular sovereignty, tell me what body he recognizes 
higher than a convention of delegates selected by 
the people to frame a constitution for them? 

I agree that the convention of Kansas ought to 
have submitted the constitution which they had 
framed to a vote of the people; it would have 
been better to do so, though I do not believe that 
it would have removed the difficulty, because, 
from the earliest moment, it seems to have been 
determined by the professing majority that they 
would have rule or ruin. Their absenting them- 
selves from the polls was not accidental. It was 
the result of deliberation and combination; and 
now, forsooth, when things have been regularly 
done, and the convention has given to the people 
the decision of the only question which those high 
in authority have pronounced as the only one upon 
which the people differed, they turn round and 
say that a majority did not vote, and ask you if 
you will take that as an expression of the will of 
the majority, when only a minority voted. 

I have some instances, with which my col- 
leagues are familiar, in which a minority have 
made a constitution, and have amended it; and I 
say to them that, on almost every occasion on 
which the question of amending the constitution 
has been before the people of Pennsylvania, a 
majority of the people have not voted for it; but 
still it has been carried by the votes of a minority 
of the voters. When there is a contest about men* 
there is an anxiety of feeling; but when the contest 
is one of principle, of establishing organic law — 
men may talk as much as they please, but I put 
facts against arguments — the minority seem to 
control, for the majority do not vote. It may be 
that they did not feel an interest in the question; 
that they had no time, and perhaps no desire, to 
look into the question involved; or they have had 
confidence in those who prepared the constitution 
or amendments; but certain it is, for some reason, 
be it what it may, they failed to vote. 

In 1835, the people of Pennsylvania were called 
upon to vote either for or against a constitutional 
convention, as they pleased. The same year, 
upon the same day, and at the same election, 
there was a contest for Governor. The number 
of people who voted for Governor was one hun- 
dred and ninety-nine thousand seven hundred and 
twenty-seven — within two hundred and seventy- 
three of two hundred thousand. The votes in 
favor of calling a convention to xevise the consti- 
tution were eighty-six thousand five hundred and 
seventy. What will gentlemen say to this. The 
convention was legally called. Nobody doubted 
the truth of the doctrine proclaimed by Governor 
Walker, that those who did vote controlled those 
who did not. Eighty-six thousand votes only, 
out of two hundred thousand voters, called that 
convention. We have another remarkable in- 



stance. When the new constitution was submit- 
ted and adopted by the people of Pennsylvania, 
in 1S33, two hundred and fifty thousand one hun- 
dred and forty-six people voted for Governor, and 
yet the new constitution was adopted with only 
one hundred and thirteen thousand nine hundred 
and seventy-one voting; for it. 

Mr. MONTGOMERY. Had all the people the 
right to vote in the case of Kansas? 

Mr. PHILLIPS. I know of none who were 
excluded from voting- 
Mr. MONTGOMERY. There were nineteen 
counties in Kansas that had not the right to vote. 

Mr. PHILLIPS. That is begging the question. 
My colleague knows that those who do not choose 
to exercise their rishts have no rights. 

Mr. MONTGOMERY. They had no right. 

Mr. PHILLIPS. It is very well to find a pre- 
text when one wants to find fault. 

Another instance has occurred in Pennsylva- 
nia, since my colleague has been a memberof this 
Congress. While there were three hundred and 
sixty thousand votes polled at the election in 1857, 
for Governor, the highest vote polled both for and 
against the proposed amendments to the constitu- 
tion was less than forty per cent, of that number. 
For one of the amendments the highest vote cast 
was one hundred and seventeen thousand one 
hundred and forty-three, and twenty-one thou- 
sand four hundred and twelve against it. One 
hundred and thirty-eight thousand five hundred 
and fifty-three out of three hundred and sixty- 
three thousand and eighty-one voters in Pennsyl- 
vania adopted those amendments; and under those 
circumstances I have no doubt my colleague will 
acknowledge that the amendments have been 
adopted and are a part of the organic law of Penn- 
sylvania. 

Now, in the case of Kansas, if the election was 
a legal and a lawful election, those who stayed at 
home, as GovernorWalker says, authorized those 
who did go to the polls to act for them, 'the con- 
vention having Submitted to the people the only 
question in issue, and the people having voted 
upon it, it remains a part of the constitution. 

I have thus shown, I trust, that there is no law 
requiring the constitution to be submitted to avote 
of the people. If there is any such, I have not 
been able to find it. All principle, precedent, and, 
I was going to say, very much of practice is 
against it. 

Now, let us consider what the constitution is. 
In the first place, is there a doubt that the peo- 
ple may wipe away every provision of it as with 
a breath ? What is a constitution ? A State con- 
stitution differs very materially from the national 
constitution. Gentlemen who cite the Federal 
Constitution, though upon the side I am endeav- 
oring to sustain, are in error. The Congress of 
the United States can do nothing which the Con- 
stitution does not authorize. Our powers are lim- 
ited; our hands are tied; and for what we do we 
must find our authority in the Constitution. In 
regard to a State constitution, exactly the reverse 
is the case. The members of a State Legislature 
may do every act of legislation which the consti- 
tution does not restrain nor prohibit. There can 
be no doubt about that; and I need cite no prece- 
dent for such a plain and recognized principle. 
When we came to form a Federal Constitution, it 
was accomplished by the surrender of certain pow- 



ers by the States themselves. Distributed as the 
powers of government usually are, the legislative 
body of a State has the sovereign legislative power 
of the State, controlled and limited only by the 
constitution. The national Constitution is an en- 
larging, a granting, instrument: not so, however, 
with a State constitution ; it is a restraining instru- 
ment; and, if the constitution of Kansas has re- 
strained either the people at any time, or the Le- 
gislature until after 1864, I have been unable to 
discover it. I say, too, if the restraint does ap- 
ply, as the gentleman from South Carolina [Mr. 
Keitt] undertook to assert, the constitution would 
not be republican, according to my notions. 

Mr. Chairman, this clause of the Constitution, 
so much talked about, it seems to me has not been 
rightly applied. There are two or three clauses in 
the constitution of Kansas which we must look at 
in this connection. The clause which prohibits 
an alteration of the constitution until after the year 
1864, operates only upon the Legislature; and it 
interferes in no manner with that other clause by 
which the right of the people is expressly reserved 
and recognized. I should contend forthe rightof 
the people at all events; but when gentlemen stand 
here and say that they are opposed to the admis- 
sion of Kansas because the constitution is not a 
good one; when they are willing that this strife 
should continue in Kansas; I want to say to them 
— nqtthatl expect to convince anybody, fori fear 
that we rush too blindly to conclusions on political 
matters for that — that there is in this constitution 
of Kansas an express recognition of the people's 
right to change their constitution when they please. 
Those gentlemen who undertake to say that they 
are restrained from doing so until 1864, fall into 
an error in confounding the application of that 
section with the section which applies solely and 
exclusively to the people. This right of the people 
is recognized everywhere. It is recognized in the 
Declaration of Independence, which declares the 
self-evident truth: 

" That all men are created equal ; that tliey are endowed 
by their Creator with certain inalienable rights; thatamong 
these are life, liberty, and the pursuit of happiness. That 
to secure these rights, governments are instituted among 
men, deriving their just powers from the consent of the 
governed ; that whenever any form of government becomes 
destructive of these ends, it is the right of the people to alter 
or abolish it, and to institute a new government, laying its 
foundation on such principles, and organizing its powers in 
such form, as to them shall seem most likely to effect their 
safety and happiness." 

The constitution of Kansas recognizes it in the 
fullest possible manner, and that clause which re- 
lates to 1864 is operative only upon the Legisla- 
ture, and in language so plain that no man can 
doubt, except those who choose willfully to do so. 

Now, sir, those two clauses are not inconsist- 
ent. The one applies to the people and the other 
to the Legislature. This enumeration of rights 
says the constitution shall not be construed to 
deny or disparage others retained by the people. 

Mr. KUNKEL, of Pennsylvania. I desire to 
ask my colleague a question, for I really feel some 
interest in his opinion upon this point. I under- 
stand him to say that the clause of the constitution 
forbidding a change before 1864 applies to the 
Legislature. I understand him to say that an- 
other provision of the constitution provides for a 
change by the people before 1864, or after, as the 
case may be. 

Mr. PHILLIPS. Yes, sir, at any time. 



6 



Mr. KUNKEL, of Pennsylvania. Now, sir, 
what I propose to ask my colleague is in the way 
of a practical question: I find that the resolution 
of the Democratic convention of our own State, 
which has just adjourned, contends for this same 
power, and says the people have it by " regular 
process." Now, I want to know from him how 
he would propose that the people should exercise 
the power ? 

Mr. PHILLIPS. I will tell the gentleman. 
They shall petition the Legislature, who shall au- 
thorize them to have a convention. 

Mr. KUNKEL, of Pennsylvania. But the Le- 
gislature have no power before 1864. 

Mr. PHILLIPS. The gentleman is wrong. 
The Legislature have power to propose legislative 
amendments at any time, and the restraint upon 
them is only after that time. I have a number 
of precedents upon that point. The constitution 
of Pennsylvania imposes a similar restraint upon 
the Legislature; and yet my colleague will not rise 
here and tell us that the people of Pennsylvania 
are so restrained, and cannot have a convention. 

Mr. KUNKEL, of Pennsylvania. I contend 
that they are not restrained. They have a high 
revolutionary right to change their government, 
just as the people of Kansas have; but it is not a 
right by " regular process." 

Mr. PHILLIPS. Well, I contend for the right 
by regular process. I want to put down the exer- 
cise of these revolutionary rights in Kansas. I 
want to substitute regular process for the strong 
arm of violence, with which the Territory has 
been too long governed. 

The people of Pennsylvania may have a con- 
vention when they please, but the Legislature 
cannot propose amendments oftener than once in 
five years. There are two sections in the consti- 
tution of the State of Pennsylvania similar to the 
two in Kansas; one acknowledging and declaring 
the right of the people at all times, and the other 
preventing and restraining hasty and too frequent 
legislative action. I will refer my colleague to a 
precedent. In 1776, Pennsylvania had a conven- 
tion, over which Benjamin Franklin presided, and 
they framed a constitution which contained a 
clause in reference to the right of the people, in 
similar phraseology to the clause in the constitu- 
tion of Kansas. And it contained another clause 
ten times as strong as the one in the Kansas con- 
stitution, which provided that there should be a 
council of censors, two thirds of whom should 
propose amendments to the people. (Appendix B.) 
The censors met and would not propose amend- 
ments to the people. A majority were in favor 
of it; but not the requisite two thirds. They ad- 
journed over till another year. The people then 
tried again to have their constitution amended by 
what they supposed was the only " regular pro- 
cess," but the council of censors again refused. 
The constitution was defective in many things. It 
had some good things in it, but it was imperfect, 
and its radical defect was that it provided for but 
one branch of the Legislature. When the coun- 
cil of censors refused to call a convention to pro- 
pose amendments, or to propose amendments 
themselves, the majority of that council addressed 
the people, and, speaking of those who opposed 
the measure, said, "Their sullen wo in this coun- 
cil cannot rob you of your birthright." 

They did not consider it a gift, an acquired 



right; they claimed it as a born-right, a birth- 
right, of which they could not be deprived, espe- 
cially by a clause operative only upon that coun- 
cil, and ineffectual upon the people whose rights 
and powers had been preserved by the other clause. 

Mr. KUNKEL, of Pennsylvania. That was 
revolution. 

Mr. PHILLIPS. No, sir; it was not revolu- 
tion; it was regular process. It was put upon the 
ground that there was a reservation in that con- 
stitution similar to the one here, and that that re- 
servation was to be construed as I am contending 
that this ought to be construed now. The Legis- 
lature took the same ground. It was opposed then 
as it is opposed now. It was insisted that the 
" regular process" was the process of the council 
of censors. But the Legislature overruled that, 
and said, "You gentlemen who compose the coun- 
cil of censors may propose amendments, and if 
you do, it must be in the form prescribed; but the 
people have, at the same time, the right to amend 
or reform the constitution at their pleasure;" and 
the Legislature declared, and the people exercised 
this right. This was not done without a struggle 
of mind and argument; the minority insisting that 
the only regular process was through the council 
of censors, and that any other attempted mode was 
in itself a violation of the constitution, presented 
plausible, yet unsound, reasons for their opposi- 
tion to the call of a convention. A constitution 
was framed in 1790; it had in it no clause pro- 
viding for its change or amendment. Yet who 
dared to dispute the right of the people to have 
a change when they desired it? They have the 
undoubted and hitherto undenied right either to 
make an entire constitution or to amend the ex- 
isting instrument. 

Mr. Chairman, what is this clause in the con- 
stitution of Kansas ? 

" Sec 14. After the year 1864, whenever the Legislature 
shall think it necessary to amend, alter, or change this con- 
stitution,. they shall recommend to the electors at the next 
general election, two thirds of the members of each House 
concurring, to vote for or against calling a convention ; and 
if it shall appear that a majority of all citizens of the State 
have voted for a convention, the Legislature shall at its next 
regular session call a convention," &c. 

Now, will any gentleman upon this floor con- 
tend that that section interferes with the other 
clause, giving to the people the right to amend 
their constitution ? 

Mr. STANTON. I wish to inquire of the gen- 
tleman from Pennsylvania whether he holds that, 
where a power is granted, and the mode of exe- 
cuting it is prescribed, it can be exercised in any 
other mode except that prescribed ? 

Mr. PHILLIPS. Of course not; but I tell the 
gentleman from Ohio that there is express power 
granted to the people, and that there is no restric- 
tion upon the Legislature until after 1864. This is 
not a. grant of power, but a.restraint upon it. When 
you undertake to restrain a legislative body, and 
to deprive them of rights, you say it in words that 
cannot be misunderstood. I have the authority 
here, which the gentleman will recognize, of the 
Topeka constitution. [Laughter.] TheTopeka- 
ites knew how to restrict the Legislature, when 
they wanted to do it. 

I have said that this clause is operative only 
upon the Legislature; but I mean to show that itis 
not operative until after 1864. Will the gentleman 
from Ohio, [Mr. Stanton,] a good and eminent 



lawyer as he is, undertake to say that he is not 
familiar with law after law beginning, that after 
such a day such and such shall be the law ? And 
will he rise here and assert that it will be the 
law until the dayspecified arrives? 1 will show 
the gentleman the language which is used when 
the object is to prohibit anything being done be- 
fore or up to a given day. I read from the Topeka 
constitution, this Republican instrument which it 
is insisted shall be the basis of the admission of 
Kansas: 

" Sec. 4. No convention for the formation of a new con- 
stitution shall be culled, and no amendment to the consti- 
tution shall be, by the General Assembly, made before the 
year I860, nor more than once in five years thereafter." 

They recognized the difference between the two 
— the people and the Legislature. When conven- 
tions want to prohibit the exercise of that power 
they use language that cannot be misunderstood. 
If any one takes up the statute-books of the Uni- 
ted States he will find hundreds of laws beginning, 
that from and after a particular day there shall be 
such law, and surely no member will argue before 
this body that before the time specified the law is 
operative or in force. I say that this clause in the 
constitution of Kansas is not of any effect what- 
ever till 1864. It then takes its place there, if not 
Ereviously altered or expunged. It may not have 
een so intended. The Topeka constitution is 
very different. It prohibits the amendment of the 
constitution effectually before the year 1865. If 
this clause was intended to have a different effect, 
its framers have overreached themselves. If it 
was intended for good , I can very well understand 
the argument that, having made a new constitu- 
tion, and infallibility not being allotted to man, 
legislative amendments should be encouraged up 
to 1864; so that, by that time, experience might 
show its merits or defects. But at that time, the 
constitution having been six years in existence, 
It was thought should not be changed by hasty 
legislative action, nor except by two thirds, and 
in a more deliberate manner than previously. If 
the motive was bad, then these men have signally 
overshot their mark. I say you cannot take up 
the statutes of State Legislatures, or the acts of 
Congress, without finding laws enacting that after 
a day such shall be the law; and if that has been 
construed to mean that the law should not go into 
effect till that time, I want to see the judge who 
would construe differently a restriction contained 
in this clause upon the legislative power. 

I hold the doctrine that the Legislature of a State 
has all the sovereign legislative power, except such 
as is for necessary purposes reserved, either ex- 
pressly or by implication, to the people. It is not 
new doctrine that I am enunciating here; but I 
have been astonished at the ground taken by some 
members in this matter. I do not know that they 
want, willfully, to pervert the condition of things; 
but the idea is absurd that, because a certain clause 
in a constitution declares that the Legislature 
shall be restricted, after a certain time arrives, 
from amending it, except in a particular way, that 
it is to be construed so as to restrain their action 
before that time arrives. Until after 1864 it is 
inoperative, as though it had been said that the 
clause should not be inserted in the constitution 
till that time arrives. 

I quarrel with no man because he differs in opin- 
ion with me. I agree with the gentleman who 



last spoke in not deeming it essential whether this 
is made a party test or not. I believe that this 
constitution has been framed with all the require- 
ments of recognized law; and I, for one, will never 
sanction the rebellion that created resistance to it 
from the moment of its inception. I have given 
the highest authority, among the opponents of 
the admission of Kansas, to show that it was 
regular in everything, down to its submission to 
a vote of the people. I have pointed gentlemen to 
the case of the constitution of my own State made 
in 1790, which was not submitted to the people, 
and it remained unaltered for forty-eight years. 
I can refer them to State after State, whose con- 
stitutions were not so submitted. The State of 
Indiana had a provision in her constitution that 
it should only be amended every twelfth year; 
but a new constitution was made in another year, 
and was accepted without a murmur of illegality. 
The man who would attempt to restrain the ex- 
ercise of sovereign power by the people, would 
meet that doom which every public man would 
want to avoid. 

Now, what do we gain by admitting Kansas 
with this Lecompton constitution? In the first 
place, do we violate any principle? If we do, I 
will not vote for it. Popular sovereignty! A 
great respect the professed majority in Kansas 
can have for popular sovereignty when they come 
here with their Topeka constitution, and say that 
the people of Kansas cannot and shall not amend 
their constitution for eight or nine years ! Sup- 
pose this is a bad constitution ! Suppose that 
it admits slavery, and that the people do not 
want it there ! I do not believe that slavery can 
exist there; I have not an idea that it can; and as 
it cannot exist there as an institution, I would 
rather see it out of the constitution. I do not ob- 
ject to the existence of slavery in a State where 
the people desire it. I do not want it in my State; 
but I do not object to the fullest enjoyment of it 
in a State where the people desire its existence. 
But whether it is the slavery or any other clause 
that is obnoxious to the people, I put my finger 
on the clause that the people may alter their con- 
stitution when they think proper; and 1 challenge 
gentlemen to point to any clause which says that 
it prohibits the amendment of the constitution at 
any time — immediately , if the people choose it. 

These are the views that I entertain. Unlike 
the gentleman from Indiana [Mr. English] who 
preceded me, I have no apology to offer for avow- 
ing the principles I hold, and which have been 
adopted by the party to which I am proud to be- 
long — that patty through which alone the har- 
mony of the country can be preserved. To me, it 
is immaterial whether this act shall, or shall not, 
be accompanied by a declaration or condition by 
Congress that the people shall have, at all times, 
the right of altering their constitution. You might 
as well insert a declaration that the sun shines; 
the two propositions are equally plain, without 
the declaration of them. I will vote for such a 
declaration, for it asserts expressly only what is 
there by necessary implication; and because, if 
there be any 'room for doubt, it will remove 
that doubt. I will vote for it in any way; either 
as a declaration, a proviso, or a condition; al- 
though I believe it is there already. Recognizing 
the right of the people of Kansas to alter their 
constitution when they please; and recognizing 



LIBRARY OF CONGRESS 



8 




the right of the Legislature, at any time before 
the year 1864, by the vote of a bare majority, to 
propose amendments, if the people do not wish 
to go through the form of having the entire con- 
stitution changed, and if they are only dissatis- 
fied on one clause; and entertaining the belief that 
the admission of Kansas into the Union is a meas- 
ure of national peace, arid that the strife which 
would follow its rejection would envelop and af- 
fect every man in the country, I most earnestly 
trust that calm counsels will prevail, and that the 
matter may be put in such a shape as the gentle- 
man from Indiana has just hoped it might be, to 
command the votes of himself and others. I hope 
there may be no dissensions in a party on which 
depend the success and quiet of the country; and 
I promise gentlemen that, if that is done, there 
will be no more disaffection nor disorder; because 
I do not believe that the people of Kansas are so 
suicidal or so fratricidal as to continue dissensions 
and discords when the Federal Government shall 
have removed its forces "'cm the Territory;, ind 
relieved it from territoria d 

the result, Mr. Chairman, iai/i .1 ,/illbe 

satisfied who have contributed & bfi&g • t ab^ut. 

[Here the hammer fell, the hour iiavin cpired.] 

[APPENDIX. 
(A.) 
Resolutions of the Legislature of Pennsylvania. 
" Resolved, That in the opinion of this House, it is expe- 
dient and proper for the good people of this Commonwealth 
to choose a convention for the. purpose of reviewing and, if 
they see occasion, altering and amending, the constitution 
of this State. 

"Resolved, That in the opinion of this House, a conven- 
tion being chosen and met, it would be expedient, just, and 
reasonable, that the convention should publish their amend- 
ments and alterations, for the consideration.^ the people, 
and adjourn at least four months previous to confirmation." 
Protest of William Lewis. 
" 1 dissent, because, although 1 admit, in the fullest ex- 
tent, that it will be proper for the convention to submit to 
the consideration of the people the plan of government 
which may be formed, and, although I fervently wish that 
sufficient time will be afforded them to deliberate thereon, 
1 am so far from being satisfied of the right of this House to 
enter into any resolutions respecting it, that I cannot but 
consider them as unwarrantable assumptions of power. The 
resolution agreed to must be intended to have some weight 
and influence with the convention, or it would not have 
been proposed ; and as that weight and influence, so far as 
they operate, must tend to prevent the unbiased exercise of 
their own minds, in a matter submitted to them by the peo- 
ple, and not by this House, they must be highly improper. 
An adjournment by the convention is a thing in itself so 
desirable, that were its members to be appointed by this 
House, and to derive their authority from it, I should not 
only be for recommending., but directing the measure. But 
the convention must be chosen by the people, in whom alone 
the authority is lodged, and will derive all their powers from 
them. They will sit, and they ought to" act, both as to ad- 
journments, and in all other respects, independent of this 
House, and should not in the one case, any more than in 
others, be influenced by it. Being to be chosen by the 
same people with ourselves, it is rather assuming in us to 
suppose that their wisdom, virtue, or discretion will be less 
than our own, and unless we distrust their prudent exer- 
cise thereof, it does not become us, to whom the business 
does not appertain, to dictate to those to whom it belongs. 
They will doubtless receive from their constituents and duly 
respect such instructions and recommendations as they may 
think proper to give, but ought not to receive any from us, 
who, as a body, have no right to interfere, and who, as in- 
dividuals, will have a voice with other members of the com- 
munity. 

"The people may think that an adjournment of four 
months is too long or too short, and may recommend as 
they may think proper; but we have no right to think or 
to act for them. If we have a right to resolve that an ad- 



journment is proper, we : ** wib Woo 9T5 5 1 

that it is improper ; or thai wry -reran^ -rm;, TO ^^„« ... 

the government is right or wrong, according to the prevail- 
ing ideas in this House. In our resolution respecting the 
election and the meeting of the convention, we are author- 
ized by the wishes of the people, manifested to us ; hut we 
have no authority of our own, and are not warranted by 
them to proceed further. When the convention meet, they 
will look to the source of their authority for instructions and 
recommendations, both as to adjourning, and as to other 
matters, and act with a prudent discretion therein ; and as 
that discretion ought not to be biased by any supposed in- 
fluence of this House, I dissent from the resolution, as be- 
ing calculated to intrench on the rights of the people and 
on the free deliberations of their representatives in conven- 
tion, and have recorded my reasons in justification of my 
conduct." 

(B.) 
From the Constitution of Pennsylvania, of 1776. 
" In order that the freedom of this Commonwealth may 
be preserved inviolate forever, there shall be chosen by bal- 
lot, by the freemen in each city and county respectively on 
the second Tuesday of October, in the year one thousand 
seven hundred and eighty three, and on the second Tues- 
day in October, in every seventh year thereafter, two per- 
sons in each city and county of this State, to be called the 
Council of Censors, who shall meet together on the second 
Monday of November next ensuing their election ; the ina- 
1 ■ /whom shall be a quorum in every case, except as 
to calling a convention, in which two thirds of the whole 
number elected shall agree, and wiiose duty it shall be to 
inquire whether the constitution has been preserved invio- 
late in every part; and whether the legislative and execu- 
tive branches of government have performed their duty, as 
guardians of the people, or assumed to themselves, or exer- 
cised, other or greater powers than they are entitled to by 
the constitution; they are also to inquire whether the public 
taxes have been justly laid and collected in all parts of this 
Commonwealth, in what manner the public moneys have 
been disposed of, and whether the laws have been duly ex- 
ecuted. For these purposes they shall have power to send 
for persons, papers, and records ; they shall have authority 
to pass public censures, to order impeachments, and to rec- 
ommend to the Legislature the repealing of such laws a.n 
appear to them to have been enacted contrary to the prin- 
ciples of the constitution. 

"These powers they shall continue to have for and dur- 
ing the space of one year from the day of their election, 
and no longer. The said council of censors shall also have 
■power to call a convention, to meet within two years after 
their sitting, if there appears to them aii absolute necessity 
of amending any article of the constitution which may be 
defective, explaining such as may be thought not clearly 
expressed, and of adding such as are necessary for the pres- 
ervation of the rights and happiness of the people; -but 
the articles to be amended, and the amendments proposed] 
and such articles as are proposed to be added or abolished, 
shall be promulgated at least six mouths before the day ap- 
pointed for the election of such convention, for the previ- 
ous consideration of the people, that they may have an op- 
portunity of instructing their delegates on the subject." 
(C.) 
Reasons for dissenting from the call of a Convention. 
" Because we are of opinion that this House is not com- 
petent to the subject. We are delegated for the special 
purposes of legislation, agreeably to the constitution. Our 
authority is derived from it and limited by it. We are bound 
by the sanction of our solemn oaths to do nothing injurious 
to it, and the good people of Pennsylvania have, in the. con- 
stitution, declared the only mode in which they will exer- 
cise ' the right of a community to reform, alter, or abolish 
government,' as being the manner most conducive to the 
public weal. 

" Because this measure at once infringes the solemn 
compact entered into by the people of this State with each 
other, to be ruled by fixed principles ; will render every form' 
of government precarious and unstable ; encourage factions, 
in their beginning contemptible for numbers, by a persever- 
ing opposition to any administration, to hope for success; 
and subject the lives and liberties of the good people of this 
Commonwealth, and all law and government, to uncer- 
tainty; render everything that is dear subject to the caprice 
of a factious and corrupt majority in the legislature; destroy 
all confidence in our government; and prevent foreigners 
from giving that preference to Pennsylvania as an asylum 
from oppression which we have hitherto experienced."] 



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